People v. Tenorio (In re Tenorio)

2020 IL App (1st) 182608

167 N.E.3d 1126

445 Ill.Dec. 694

IN RE COMMITMENT OF Luis TENORIO

(The People of the State of Illinois, Petitioner-Appellee,

v.Luis Tenorio, Respondent-Appellant).

No. 1-18-2608

Appellate Court of Illinois, First District, Fourth Division.

March 12, 2020

Michael R. Johnson, Kate E. Levine, and Ian C. Barnes, of Johnson & Levine LLC, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Chicago (Michael M. Glick and Nicholas Moeller, Assistant Attorneys General, of counsel), for the People.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a trial, respondent Luis Tenorio was found by a jury to be a sexually violent person under the Sexually Violent Persons Commitment Act (SVP Act) ( 725 ILCS 207/1 et seq. (West 2016)) and was ordered committed to institutional care in a secure facility. Respondent appeals, claiming that the State used his prior convictions as substantive evidence against him in its opening, closing, and rebuttal and, consequently, respondent was unable to receive a fair trial. For the reasons set forth below, we affirm.

¶ 2 BACKGROUND

¶ 3 On October 22, 2007, the State filed a petition to civilly commit respondent as a sexually violent person under the SVP Act,¹ alleging that respondent had been convicted of aggravated criminal sexual abuse, a sexually violent offense under the SVP Act, for which he served five years in the Illinois Department of Corrections (IDOC). The petition alleged that respondent suffered from "Pedophilic Disorder, Sexually Attracted to Females," a mental disorder that predisposed respondent to sexual violence, and further alleged that respondent was dangerous because his mental disorders made it substantially probable that he would engage in future acts of sexual violence. The State's petition was supported by an evaluation conducted by Dr. John Arroyo, a licensed clinical psychologist.²

¶ 4 Trial on the State's petition began on August 7, 2017. As the opening statements and closing arguments are at issue on appeal, we discuss them in some depth. Prior to the State's opening statement, the court reminded the jury that opening statements were not evidence but were merely statements by the attorneys as to what they expected the evidence to show. The State then began its opening by informing the jury that they would hear testimony from Dr. Arroyo and Dr. Edward Smith, who would opine that respondent would be a repeat offender and was a sexually violent person. The State continued:

"And that opinion was based on several factors.

First, they considered his criminal history and that helped them to develop an idea of what drives him, what moves him, what motivates him, what makes him behave the way he does. So they looked at the history."

The State then began relating the details of a 1999 arrest, and the defense objected, claiming that the State was using the basis of the experts' opinion testimony as substantive evidence. The court then addressed the jury:

"Ladies and Gentlemen, these are just arguments of what the attorneys expect the evidence to show. It is not evidence.

Continue."

The State continued, again prefacing its comments by stating:

"And in formulating his opinion, he used these facts to see what drives him, what patterns of behavior drive him."

The State then proceeded to discuss two 1999 incidents, with the defense objecting several times. The State concluded its description of the 1999 incidents and moved on to two incidents in 2000 by saying:

"He still has these urges and the doctor is using these urges in forming his opinion.

Then we move on to 2000, and in that case, the respondent's behavior seems to escalate. He has no control over his behavior and the doctors use this in forming their opinion."

¶ 5 The State then discussed incidents in 2000 and 2001, over the defense's continued objections, and concluded by saying:

"He's unable to control his urges.

So after that, the respondent still cannot control his urges and you will hear the doctors testify that this pattern, this escalation of behavior shows you the sexual urges and the sexual drive is so strong that even supervision and other restraints have not prevented that behavior."

The State then continued to a 2000 offense, with the defense objecting. After several more objections, the court ordered the attorneys to approach and discussed the defense's objections:

"THE COURT: What are you objecting to?

DEFENSE COUNSEL: There has not been a single mention of the fact that this is all information that is based off of records. This is not evidence that's coming in. This is not—

THE COURT: These are opening statements, Counsel.

DEFENSE COUNSEL: Judge, I would refer you to In re the Commitment of Kathryn. This is the same issue that we brought up there that was reversible error.

ASSISTANT ATTORNEY GENERAL [(AAG)]: It is not. What counsel is referring to—

* * *

The basis of his opinion [sic ] is the fact that this is being used for the basis of his opinion and that has been said over and over again. Now, what he uses for the basis of his opinion can also be testified to and that is all we're saying, what the evidence will show.

Counsel is referring to a case that has nothing to [do] with this one and simply they were using the same factual allegations as substantive evidence and we are using the factual allegations to show how it forms the opinion. That's the difference. That's what's being done. That's what's being argued.

DEFENSE COUNSEL: Each of these basis [sic ] of information that are being argued as if it is fact as if there's information that will be provided in testimony and provided at trial, and there won't be.

THE COURT: She's making an opening statement on what these doctors are basing their opinions on.

DEFENSE COUNSEL: But she hasn't said that yet.

THE COURT: She has said that.

AAG: Repeatedly.

THE COURT: Yes, she has.

DEFENSE COUNSEL: Well, I will have a continuing objection then to the narrative type."

¶ 6 The State then returned to discussing respondent's history, prefacing discussion of a 2002 incident by saying:

"And in 2002, there was a further escalation of behavior and the doctors relied on this not only to show the behavior itself, the urges, but the escalation, the change and the pattern."

The State noted that respondent was incarcerated for this offense and stated:

"At that point, the respondent is arrested and he's incarcerated and given parole. Now, this is a penalty that he's given and the doctors will tell you that his inability to even comply with supervision and other penalties also is used in the forming of their opinion."

¶ 7 The State continued:

"Now, while he was on parole, the respondent goes yet to another girl and attempts to approach her to get her information following her. That little girl flees in fear, as the reports indicate, and the doctors relied on that, that while even on parole, he's unable to control this urge to approach these young girls. He's then incarcerated an additional time. And after that incarceration, he's released. And even after that, these urges, these behaviors, this desire to approach these young girls continues and the doctors will explain how that continuation after all of these years from 1999 until 2005 shows a pattern of behavior.

And then in 2005, he again exhibits similar behavior where he's convicted of an offense where he's again chasing a young girl, grabbing and groping her on her genitals showing a pattern of behavior. And after all of these things, the doctors use these facts and opinions and these things that they've learned from reading the records to show that he has an urge, an interest, behavior that he simply cannot control. Self-control is lacking."

¶ 8 During its opening, the defense focused on the fact that the State had the burden of proving respondent to be a sexually violent person (SVP) beyond a reasonable doubt and argued that the State would not be able to satisfy its burden.

¶ 9 During the trial, the State called two clinical psychologists as witnesses: Dr. Arroyo and Dr. Smith. Dr. Arroyo testified that he was employed by Wexford Health Source, a company that was contracted to provide the IDOC with evaluations to determine whether certain individuals satisfied the criteria to be considered SVPs under the SVP Act. Dr. Arroyo testified that, as part of his work history, he had worked with individuals who were developmentally delayed or otherwise had cognitive disabilities, and that he considered such cognitive impairments as part of his assessment of the case. After setting forth his educational and work history, Dr. Arroyo testified to his qualifications as an expert in clinical and forensic psychology, specifically in the area of sex offender evaluations. Immediately after qualifying Dr. Arroyo as an expert, the trial court instructed the jury:

"Ladies and Gentlemen, I'm going to allow the witness to testify in part to books, records, articles, and statements that have not been admitted in evidence. This testimony is allowed for a limited purpose. It is allowed so that the witness may tell you what he relied on to form his opinions. The material being referred to is not evidence in this case and may not be considered by you as evidence. You may consider the material for the purpose of deciding what weight, if any, you will give the opinions testified to by this witness."

¶ 10 Dr. Arroyo testified that respondent was currently 35 years old and was housed at a treatment and detention facility (TDF) in Rushville. In 2012, Dr. Arroyo was assigned to evaluate respondent to determine if he was an SVP. During the process, Dr. Arroyo reviewed a number of records, including police reports, prior evaluations, as well as "[a] statement of facts from the State's Attorney's Office, case facts sheets, any police information, rap sheets, any disciplinary information from [the] Department of Corrections and from the treatment detention facility, medical records. Basically anything with his name on it goes in...